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A LETTER 

TO THE 

HON. BENJAMIN R. CURTIS, 

■i 

LATE JUDGE OF THE 

<f iipfjemje &mxi 0I tin %mUi M^t0, 

IN REVIEW OF niS RECENTLY PUBLISHED PAMPHLET 
ON^ THE 

'' EMANCIPATION PROCLAMATION " 

OF THE PRESIDENT. 

IB-y O H ^^ 2?=L Ij E S I^. KlI :E={.I^Iji-A.ISr XD, 
OF NEW-YORK. 




NEW-YORK: 

683 Broadway. 
18G3. 



Mr 3 'OS 



£1465^ 



To THE Honorable Benjamin E. Curtis, late Associaie 
Justice of the Supreme Court of the United States, 

I propose respectfully, but with perfect frankness, to review 
yanr recently published pamphlet on the subject of the President's 
'.' Emancipation Proclamation " of September 22d, 1862, 

This would have been done at an earlier day, but it is only very 
recently that I first saw the pamphlet. 

It is to be regretted that, regarding — as you profess to do — 
this proclamation and that of the 24th of the same month, 
as fraught with peril to your countrymen, you did not treat them 
separately. They differ radically and essentially in subject and in 
intent. The one is limited in its application to the rebel States, 
the other applies equally there and here. The one involves ulti- 
mate results and consequences of the most important and enduring 
character; the other is, in its very nature, temporary. The one 
gives rise to considerations of a kind wholly different from, and 
irrelevant to, the other ; yet your pamphlet so confuses them to- 
gether, that it is quite difficult, if not impossible, to discover what, 
in your view, is the distinguishing fatal error of each. Justice to 
the subject, which you declare to be of such momentous import; 
justice to the Head of this great nation, whose acts you arraign as 
bordering on, if not actually amounting to, the crime of usurpa- 
tion ; justice to the elevated position you so recently occupied, 
required that you should at least have pointed out separately, 
distinctly, and in the most lucid manner, the grounds on which 
you base a charge of such magnitude. Instead of that, we have 
here (to use a legal term with which you are familiar) a complete 
"hotch-potch," These different and distinct matters are thrown 
indiscriminately together ; and, in many instances, no ingenuity 
can determine whether your argument, your illustrations, your 
deprecatory expressions, apply to the one proclamation or to the 
other. But at present I shall, so far as I can, ascertain from your 
pamphlet the specific complaints you make as to the " emancipa- 
tion proclamation," and, if I err in attributing to you allegations 



as to this, whicTi you intended solely for the other, my error will, 
I trust, find an apology in the mode you have adopted of treating 
the two subjects. 

Before going further, I may be pardoned for imitating your 
example, and saying a word personal to myself. In some essential 
particulars, I stand in the same position you state yourself to 
occupy. I, like you, "am a member of no political party." "I 
withdrew," as you did, "some years ago, from all such connec- 
tions." I have generally, however, exercised my privilege as one 
of the electoral body ; and at the last presidential election I voted 
against the present incumbent, and at the last State senatorial elec- 
tion I voted for the Democratic candidate in my district. 

I, like you, " have no occasion to listen to the exhortations now 
so frequent to divest myself of party ties, and act for my country." 
I, too, "have nothing but my country for which to act in public 
affairs," and with me, too, "it is solely because I have that yet 
remaining, and know not but it may be possible to say something 
to my countrymen, which may aid them to form right conclusions 
in these dark and dangerous times, that I now (through you) 
address them," and make the effort to aid them in "forming 
right conclusions" as to your views, and the subject of which 
you treat. Thus, my work, like yours, is purely "a work of 
love." 

It may not be amiss to say, that there are, in fact, but two parties 
in our country ; one that is for the country, the other that is against 
the country. To the former belong the vast majority of the Demo- 
cratic party and the vast majority of the Eepublican party, and the 
few (alas I so few) Unionists of the South ; to the latter belong the 
fanatical abolitionists in the Eepublican party, the rebel sympa- 
thizers in the Democratic party and the Eebels of the South. To 
the party of my country belong, I say, the great majority of both 
the Democratic and the Eepublican parties ; in other words, the 
vast majority of the "People" of the United States — I say so, 
because I cannot be persuaded that that majority, by whatever 
party name the individuals composing it may be called, are insen- 
sible to the blessings of the form of government under which they 
live, unaware and ignorant of the indispensable importance of the 
preservation of the Union to their existence as a nation — forgetful, 
basely, ungratefully forgetful, of the heroic struggles and sacrifices 



of their Eevolutionarj fathers— deaf and dead to the earnest pater- 
nal farewell advice and warnings of Washington, lost to all sense 
of patriotism and of public virtue. And as to the millions from 
other lands, who are now "of us and with us," who have sought 
and found shelter and protection and happiness in our Temple of 
Liberty, and who with such gallantry have recently fought the 
battles of "The United States of America," and who individually 
belong to the Democratic or the Eepublican parties, I cannot be- 
lieve that these men, whether as individuals they may be called 
Democrats or Eepublicans, will ever consent to the overthrow of 
that Temple, or to the breaking up of those " United States." But 
notwithstanding this perfect conviction of mine, it is nevertheless, 
as you say, not out of place for you or for me, or for any others 
who choose to undertake the task, to " say something that may aid 
our countrymen to form right conclusions in these darh and dan- 
gerous " (as you call them) "times." 

These words, " dark and dangerous," in the connection in which 
you use them, lead me to say another preliminary word before 
coming directly to your argument. 

•These words assure me, that you belong to that class of men 
among us, not large in number, but sometimes influential in posi- 
tion, who, from natural temperament and disposition, or from 
aversion to strife of all kinds, or from a want of proper appreciatiorh 
of the real character of this rebellion, (I think chiefly from the lat- 
ter cause,) honestly labor under a fearful distrust or a gloomy fore- 
boding as to the result of the impending contest for the preserva- 
tion of our glorious government and of our blessed Union. / do 
not belong to that class of men. I do not now believe, fear, nor 
apprehend, and never for a moment have believed, feared or 
apprehended that a crime, such as this rebellion, a crime against 
the Almighty and against humanity, wholly without a parallel for 
enormity in the world's history, and the iniquity of which can 
scarcely be expressed in any language known to us, I do not, I say, 
believe that such a crime will be permitted to be carried to a success- 
ful end, so long as " God sitteth on the throne judging the right," 
nor until Truth shall cease to prevail over error, reason to triumph 
over delusion, and Right to overcome wrong.* On the contrary, I 

* lu speaking of the crime of this rebellion, the difference in a moral point of vievf 
between the leading conspirators and the body of the people of the South engaged in it 



look witli a clear faith and a cheerfal confidence to the termination 
of this rebellion at no remote period, and to such a termination as 
will show to an admiring and approving world that this govern- 
ment, confessedly the most beneficent, is at the same time the most 
firm and enduring to be found on earth. 

To proceed to the examination of jour argument : 

The first observation I have to make is, that throughout your 
paper you treat the proclamation substantially as if it were a pro- 
clamation of absolute emancipation in the rebel States ; that is, were 
it such a jorodamaiion, your argument would be in substance the 
same it now is. 

Again, in your copy of it, you entirely omit the clause in refer- 
ence to comjjensaiion ; and it will be found that a portion, and no 
immaterial portion, of your argument, is based on the non-exist. 
ence of the conditional and compensatory parts of the proclamation. 
It is very clear, that a proper regard to truth a.nd fairness would 
have required a conspicuous place in your paper for these two dis- 
tinguishing features. 

With these omitted or practically concealed, you could by no 
possibility attain the object you profess, namely, " the aiding your 
countrymen in forming right conclusions." 

A fatal error underlying your whole argument is, that in sub- 
stance and effect you treat and argue this matter precisely as you 
would have done had there been no rebellion and no loar ; had the 
country been at peace; had you prepared and published your 
views in November, 1859, (if a similar proclamation had been then 
issued.) You throw the veil of oblivion over the last two years; 
you ignore the events that have occurred during that period and 
the state of things existing in the country on the 22d of Septem- 
ber, 1862. 

Though you wholly disregard it in your argument, yet you 
forcibly describe the status of the country on the day of its date. 

should carefully be kept in view. The former are to be execrated, the latter to be 
pitied; and while the practical effects of the -wickedness of the one and of the delu- 
sions of the other, cpmbined in action as they are, are the same, yet we are never to 
cease to draw the moral distinction just mentioned. Any one who desires to know 
the secret and real causes of the Rebellion, the motives and ends of the arch-conspirators 
who originated it, will be gratified and instructed by a perusal of the article entitled 
"Slavery and Nobility vs. Democracy," ia the July number, 18152, of the Coniiiwntal 
Monthly. 



You say, " The war in which we are engaged is s,just and necessary 
war. It must be prosecuted with the ichole force of this govern- 
ment, till the railitary power of the South is broken and they 
submit themselves to their duty to obey and our right to have them 
obey the Constitution of the United States as the supreme law of 
the land." You thus affirm that, at the date of that proclamation, 
we were and noio are engaged in a luar^ a just and necessary war — 
a war that must he carried to a success/id termination by the exercise 
of the whole force and 2^ower of the government. You might justly 
have added, that it is a war infinitely worse, on the part of the 
rebels who caused it, than a war with any foreign nation could be, 
in its inception ; in the mode of its conduct by the rebels ; in 
the motives of its originators, and the ends sought to be accom- 
plished by it. It was then by necessary consequence a war, in 
which all the means — and more than the means — we might legiti- 
mately resort to in a foreign war might and ought to be used and 
rendered available to the utmost practicable extent consistent with 
the rules of civilized warfare. 

What, then, if we were at war with a foreign nation immediately 
on our borders, and that nation had within its bosom millions of 
slaves? Can any one, versed in tlie slightest degree in the prin- 
ciples of the law of nations and the laws of war, for a moment 
doubt our right to declare and proclaim freedom to those slaves, in 
case that nation did not discontinue that war within a prescribed 
period ? 

It may be asked what would be the utility, the practicalness of 
such a proclamation ? I answer in your own words, " I do not 
propose to discuss the question whether this proclamation can have 
any practical effect on the unhappy race to whom, it refers, nor what 
its practical consequences would be on them and on the white popu- 
lation of the United States." You discuss and I discuss simply 
the constitutional right and power of the President, under existing 
facts, to issue that proclamation. 

We, in this discussion, are to assume that, in the contingency 
stated in it, it will go into actual operation as intended. Then 
we are to inquire what the practical effect of its thus going into 
actual operation would be, not on the black nor the white race, 
but on the war the rebels have declared and are carrying on. It 
requires but a very limited knowledge of facts to answer this in- 



8 

quiry. If any one fact is demonstrated "witli perfect clearness in 
this contest thus far, it is, that the shaves in the States in rebellion 
have furnished to those States means indispensable to them for car- 
rying on and sustaining the contest on their part* Without the 
agricultural and domestic labor of the slaves, tens of thousands of 
whites, who have been and now are in the rebel army, could not 
have been withdrawn from the cultivation of the ground, and the 
various other pursuits requisite to the supply, for that whole 
region, of the actual necessaries of life. Without the slaves, their 
numerous and extensive earthworks, fortifications, and the like, 
their immense transportation of military stores and munitions, a 
vast amount of labor in camps and on marches, (to say nothing of 
the actual service as soldiers, said in many instances to have 

* Thousands of illustrations of the truth of this statement might be given. Take 
this one: On the second day of November, 1862, Gov, Brown, of Georgia, "Com- 
mander-in-Chief," issued this edict : 

To the Planters of Georgia : 

Since my late appeal to some of you, I am informed by Brig.-Gen. Mercer, com- 
manding at Savannah, that but few hands have been tendered. When the impress- 
ments made by Gen. Mercer, some weeks since, were loudly complained of, it was 
generally said that, while the planters objected to the principle of impressments, they 
would promptly furnish all the labor needed, if an appeal were made to them. I am 
informed that Gen. Mercer now has ample authority to make impressments. If, then, 
a sufficient supply of labor is not tendered within ten days from this date, he will resort 
immediately to that means of procuring it with my full sanction, and I doubt not with 
the sanction of the General Assembly. 

After you have been repeatedly notified of the absolute necessity for more labor to 
complete the fortifications adjudged by the military authorities in command to be indis- 
pensable to the defence of the key to the State, will you delay action till you are com- 
pelled to contribute means for the protection, not only of all your slaves, but of your 
homes, your firesides and your altars ? 

I will not believe that there was a want of sincerity in your professions of liberality 
and patriotism when many of you threatened resistance to impressment upon principle, 
and not because you were unwilling to aid the cause with your means. 

I renew the call for negroes to complete the fortifications around Savannah, and trust 
that every planter in Georgia will respond by a prompt tender of one-fifth of all his 
working men. 

As stated in my former appeal, the General in command wUl accept the number 
actually needed. 

JOSEPH E. BROWN. 

The Governor, it will be seen, calls for " one-fifth of all the working (slaves) men." 
The slave population in Georgia, in 1860, exceeded 462,000 ; it is not an exaggerated 
estimate, that one in six of that population is a " working man ;" this one-sixth is more 
than 77,000, and one-fifth of that number is upwards of 15,000. The call is therefore 
for 15,000 "working men," and this too in a single State, and for a limited pur- 
pose. And yet we have not the rigJU to try to render unavailable to the " enemy" 
this powerful force ! 



been rendered by slaves,) could bj no possibility Lave been ac- 
complished. 

The intent and design of the proclamation, its actual effect, if it 
has its intended operation, is to forever deprive the " enemy" of 
this vital, absolutely essential, and, as I have just said, indispensable, 
means of carrying on the war. In reason, in common-sense, in na- 
tional law, in the law of civilized war, what objection can exist to 
our using our power to attain an end so just, so lawful, and I may 
say so beneficent and so humane, as thus depriving our " enemy" 
of his means of warfare ? I do not believe that you, on more 
mature reflection, will deny the truth of what I have just stated. 

But you say, " grant that we have this power and this right, 
they cannot be exercised hy the President,'' and for the exercise of 
this power, he is charged by you with " usurpation." 

A few. considerations will show the fallacy, the manifest un- 
soundness and error of your views and arguments on this point. I 
may, in the first place, remark that the very title of your pamphlet, 
''Executive Power,'' is a "delusion and a snare." The case does 
not give rise to the investigation of the President's " executive 
power." The word " executive" manifestly and from the whole 
context of the Constitution, has reference to the civil power of the 
President, to his various civil duties as the head of the nation, in 
"seeing that the laws are executed"— to his duties in time of 
peace, though of course the same " executive" duties still con- 
tinue in time of war ; but to them, in that event, are superadded 
others, which, in no just or proper sense, can be termed " execu- 
tive," but which pertain to him in time of ivar as " Commander-in- 
Chief" These latter duties are provided for by the letter and by 
the spirit of other provisions of the Constitution, by the very na- 
ture and necessity of the case, by the first law of nature and of 
nations, the law of self-joreservation. What is the meaning and in- 
tent of the constitutional direction to the President, " that he shall 
preserve, protect, and defend the Constitution," unless in time of war, 
he can do so in his capacity of " Commander-in-Chief," unless in 
time of war he shall have the power to adopt and carry out as to the 
enemy such measures as the laws of ivar justify, and as he may 
deem necessary ? Is the Constitution designed to do atvay these 
laws, and render them inapplicable to our nation— in other words, 
is the Constitution a felo de se ? It cannot be denied, that in time 



10 

of war, at least, the President, while in a civil sense the "exec- 
utive," is at the same time the military head of the nation — "the 
Command 3r-in-Chief" — and as such his "command" is necessarily 
coextensive with the country, 

I cannot, on this point, quote anything more true and more ap- 
posite than a paragraph of your own. " In time of war, without 
anij special legislation, the (our) Commander-in-Chief is lawfulhj em- 
powered hy the Constitution and laws of the United States to do what- 
ever is necessary and is sanctioned hy the laws of loar to accomplish the 
lawful objects of his comraandP 

This is, undoubtedly, the constitutional law of the land, and 
being so, it of necessity upsets and overturns all your objections to 
the proclamation in question. The " lawful object" of the Presi- 
dent at this moment is to preserve the Constitution by putting an 
end to this rebellion. In order to do this, it is necessary to deprive 
the rebels of their means of sustaining the rebellion — one of the 
most effective and available of those means, as just shown, is their 
slaves ; the intent and object of the proclamation are to deprive 
them of those means. The so de^Driving them " is sanctioned by 
the laws of war," and, consequently, this act of the President is, 
within your own doctrine, perfectly legal and constitutional. 

The same argument which you make against presidential power 
was made in Cross v. Harrison, 16 Howard, 164, in the Supreme 
Court of the United States, in a case occurring during, and arising 
out of, our war with Mexico, in the judgment in which case you, 
as one of the Justices of that Court, concurred. In that case the 
President, without any specific provision in the Constitution — 
without any law of Congress preexisting or adopted for the occa- 
sion, created a civil government in California, established a war 
tariff, and (by his agents) collected duties. The Court held that 
these acts (to use their own language) " were rightful and con- 
stitutional, though Congress had passed no law on the subject ;" 
that " those acts of the President were the exercise of a belligerent 
right ; that they were according to the law of arms and right on 
the general principles of war and peace." Who will allege, that the 
acts of the President on that occasion were not, to say the least, as 
unauthorized by the Constitution and the law as his proclamation 
in the present case ? And yet you did not dissent from the judg- 
ment of the Court, yoi did not speak of those acts as acts of 



11 

" Executive " power, for the term would have been there, as it is 
here, wholly inapplicable ; you did not then charge the President 
with usurpation. The whole case there was, as it is here, a case 
arising out of belligerent rights and duties, out of a state of war ; 
and the President's acts were there, as here, not in contradiction to, 
and disparagement of, the Constitution, but consistent therewith on 
the great ground that the Constitution nowhere repeals, but, on the 
contrary, from the necessities of its own existence and preservation, 
recognizes the laws of war in a state of war. Similar authorities in 
abundance might be cited, but it would be a work of supereroga- 
tion. 

It may not be amiss, however, to refer in this connection to the 
honored name of John Quincy Adams, on the very point now in 
question, namely, the constitutional right of the President to issue 
this proclamation. 

No citizen of this land will deny to Mr. Adams as perfect an 
acquaintance with the spirit and nature of our institutions, as 
, minute a knowledge of the provisions, expressed and implied, of 
the Constitution, and as ardent a desire to preserve them in their 
purity, as were ever possessed by any man living or dead. lie 
was distinguished, too, for the most delicate moral sense, the purest 
integrity, and the deepest conscientiousness. I think no man who 
has taken an official oath ever felt a more earnest and constant 
desire on no occasion to violate it. Now, Mr. Adams, while a 
member of the House of Representatives, in a debate in the House, 
on an important subject, in April, 1842, after stating that slavery 
was abolished in Columbia, first by the Spanish General Murillo, 
and secondly by the American General Bolivar, by virtue of a 
military command given at the head of the army^ and that its aboli- 
tion continued to this day, declares that " in a state of actual war 
the laws of loar take precedence over civil laws and municipal 
institutions. I lay this down as the law of nations. I say that the 
military authority'' takes for the time the place of all municipal in- 
stitutions, slavery among the rest, and that under that state of 
things, so far from its being true that the States, where slavery 
exists, have the exclusive management of the subject, not only the 
President of the United States, but the (subordinate) commander 
of the army has the power to order the ew,anci.pation of the slaves^ 
This is the "true saying" of a great constitutional lawyer, a pure 



12 

patriot, a conscientious man — indeed, I doubt wlietlier any man in 
this country, whose position entitles his opinions to any considera- 
tion, will be found to concur in your views. They are not adopted 
— indeed, they are repudiated by the most prominent leader of the 
Democratic party. Thus, Mr. John Yan Buren (in a speech before 
the Democratic Union Association of the city of New-York, on 
the lOth of November instant) said: "I never said anything in 
reference to that proclamation except that it was a matter of ques- 
tionable expediency. I have never deemed it unconstitutional. I 
have never even asserted that, as a war measure^ it might not have 
been expedient." It would seem idle to add more in demonstration 
of tbe clear, unquestionable power of the President (I may say, of 
his solemn duty) "as commander-in-chief," in the exercise of a 
military power, " during a state of war," to issue the proclamation 
in question. 

The ground of objection you most prominently put forth is, 
indeed, extraordinary, and, without offence, I trust I may say mon- 
strous. It is no more nor less than this : " The persons who are 
the subjects of this proclamation are held to service by the laios of 
the States in which, they reside, enacted by State authority." "This 
proclamation by an executive decree proposes to repeal and annid 
valid State laivs, which, regulate the domestic relations of their 
people," and this "as a punishment against the entire people of a 
State by reason of the criminal conduct of a governing majority of 
its people." Never was more error, gross, palpable, grievous, found 
in a single brief paragraph. Mark the existing state of things. 
These "States" are each and every of them in rebellion against 
their country and their Government; they are waging against 
it the most bloody and relentless war ; they totally condemn and 
repudiate the Constitution of their country ; they deny that it 
has any, the least, authority over them ; they are making almost 
superhuman efforts to overthrow and destroy it ; the people, as 
individuals, and the States in their corporate, municipal capacities^ 
go hand in hand together in this awful work, and yet you claim 
for them the p-otedion of that very Constitution ; you claim the in- 
violabilit}^ of their State laws under that Constitution. You claim 
that those laws are " valid " and operative, and are to shield and 
protect, aid and assist them in their unhallowed attempt to destroy 
their country ! ! It is difficult to imagine under what hallucination 



13 

you were laboring when you gave utterance to those sentiments. 
The bare statement of the case must carry to every sane mind, 
North and South, the instant refutation of your propositions. The 
very rebels tliemselves, to whom you offer the protection of the 
"Constitution," would, with wrathful indignation, spurn the offer. 

You speak of the proclamation as a " threatened penalty " — 

as "a punishment to the entire people of a State by 

reason of the criminal conduct of a governing majority of the 
people." 

I have already shown, satisfactorily I trust, that the act of the 
President partakes in no sense of the character of a "penalty" or 
" a punishment," but is simply the exercise of his constitutional 
power, in a time of war, to devise and adopt and carry out against 
the enemy such measures as he may judge to be for the good of 
his country ; for the defeat of that enemy, and for the success- 
ful and speedy ending of "the war." You draw a distinction, 
unheard of, I imagine, till announced by you, a distinction be- 
tween the "people of a State," and the "governing majority" 
of that people ; a distinction, too, which is to operate, in a time of 
war, against the party with whom that " State " is at war ! ! I 
venture to say, that no writer on the law of nations, no judicial 
tribunal, no intelligent man, has up to this hour believed or stated 
that, in the case of foreign war above supposed, the " governing 
majority" was not to all legal and all practical purposes, "the 
State." Were the United States at war with any foreign power — 
a war sanctioned by the " governing majority," (as our war of 
1812,) but a war which you and othei's (a minority) wholly dis- 
approved ; and that foreign power adopted some war measure 
which would operate on " the entire people" of the United States, 
could you and your associates of the minority, on any principle 
of law, military or civil, of justice, of reason, or of mercy, claim 
exemption from the effects of that measure ? The case supposed 
is precisely the case as it now exists between the " United States 
of America" on the one hand, and the " Eebel States and peojjle" 
on the other. 

Again, you state as a serious, if not conclusive objection to the 
proclamation, that "it is on the slaves of loyal persons or of 
those who from their tender years, or other disability, cannot be 
either disloyal or otherwise, that the proclamation is to operate.'' 



14 

Have your countrymen at this hour, to learn for the first time 
that the "sun shines ahke on the just and on the unjust," that 
storms and whirlwind overwhelm at the same time the righteous 
and the wicked, and that the calamities of war, from the very ne- 
cessity of the case, fall indiscriminately on the innocent and the 
guilty, the strong and the helpless, on those of mature and those 
of " tender years" ? But as to this last objection, itlacks one ma- 
terial quality, namely, foundation in fact. That part of the pro- 
clamation which you have so strangely, as observed above, omitted, 
provides for the case of the very persons for whom your sympa- 
thies are excited. It pledges to them compensation. I say 
" pledges," for it declares " that the Executive will h\ due time 
recommend that all persons who have remained loyal (of course 
including in its spirit those who from tender years, or otherwise, 
were incapable of being disloyal) shall be compensated for all losses 
by acts of the United States, including the loss of slaves.'' No 
future Congress of the United States will be so lost to all sense 
of honor and obligation as not to pass, and no future President 
so degraded as not to approve, a bill redeeming this solemn and 
sacred " pledge " of the Head of the nation. 

Again, you advert in no part of your argument to the vital fact 
that this proclamation is not absolute and unconditional, but that it 
depends even for its existence jprac^icaZZ^ on the acts and will of the 
rebels themselves. If they so elect, it is never to go into operation^ 
and they have abundant time to make that election, namely, from 
the 22d of September, 1862, to the 1st of January, 1863. But 
your argument, in all its essential j^articulars, would have been just 
the same as you now address it to your fellow-citizens, if this pro- 
clamation had been absolute, had declared universal emancipation, 
to go into effect on the day of its date, and (as already remarked)' 
had not provided compensation to the loyal, and had been issued 
in a time of profound peace. 

You profess, in your argument, simply to examine " the nature 
and extent, and the asserted source of the power by which it is 
claimed that the issuing of this proclamation was authorized ;" and 
it was "for the purpose of saying something to your countrymen 
to aid them in forming right conclusions,'''' that you 'reluctantly 
addressed them." The policy, the expediency, the utihty, the 
practical effects, per se, of the proclamation, you say, you do not 



15 

" propose to discuss," yet you intimate^ that by means of tbis pro- 
clamation, if executed, "scenes of bloodshed and worse than 
bloodshed are to be passed through," and you express, in no un- 
equivocal manner, a doubt " as to the lawfulness, in any Christian 
or civilized land, of the use of such means (that is, this proclama- 
tion) to attain any end." You intimate, too, that "a servile war 
is to be invoked to help twenty millions of the white race to assert 
the rightful authority of the Constitution and laws of their coun- 
try." All these direful forebodings are put forth in half a dozen 
lines, certainly not to " aid your fellow-citizens in forming right 
conclusions," but through their sympathies and their fears to in- 
duce the concurrence of their reason in your views as to the power 
to.do the act in question. These "givings out" of yours require 
a passing notice. 

In the first place, where is your authority for the allegations as 
to "scenes of bloodshed and a servile war ?" I am not an aboli- 
tionist, nor a believer in the social and political equality of the black 
and white races, (though I have an opinion on the subject of the 
effect of the institution of slavery on the white man and white 
woman, who have been nurtured under its influence, and on the 
question of the compatibility of the institution with a republican 
form of government.) I am even called by some a pro-slavery 
man. Yet I see no " scenes of bloodshed," no " servile war," in 
the event of the practical carrying out of this proclamation. This, 
however, is a mere matter of speculation and opinion, and while I 
freely concede your right to entertain your own, I claim my right 
to entertain mine. Our means of forming our opinions are the 
same ; we both have the same lights, and the result alone can show 
which of us is right. 

But, in the next place, assuming the consequences to he just such 
as you imagine, who is responsible for those consequences ? They 
cannot come, as you will admit, if the rebels return to their alle- 
giance ; if they cease their unhallowed efforts to overthrow their 
government ; if they become dutiful citizens. If they do not, it 
is not your fault nor mine, nor that of our fellow-citizens, nor of 
the President, nor of the government of the United States— it is 
solely, wholly, unquestionably their own. 

Again, you look with evident heartfelt horror at the events which 
yon thus contemplate. Have you no horror, no tears of sympathy, 



16 

no " bowels of compassion," when you reflect on tlie multitudes, the 
thousands of valuable loyal lives lost, homes grief- stricken, parents 
rendered childless, and children rendered orphans ; the desolation 
and misery of whole neighborhoods, to say nothing of the enor- 
mous material destruction caused to citizens of the loyal States in 
this war — a war on our part, as you say, " so just and necessary," 
and on the part of the rebels so wicked, so wanton, so utterly 
causeless, and so wholly unjustifiable ? Though no man of human- 
ity could look with other than deep distress on the "scenes of 
bloodshed," and the " servile war," you imagine, (should they be- 
come realities,) surely it cannot be believed, that the amount of 
distress and suffering, that would thus ensue, would equal — it 
surely cannot surpass — the distress and suffering that have «,1- 
ready been endured by the loyal citizens of this republic in con- 
sequence of this rebellion. 

You doubt the "lawfulness," in this Christian and civilized land, 
of the use of such means (as this proclamation) to attain any end. 
And has it come to this, that a distinguished citizen of the republic 
doubts wliether a proclamation emancipating the slaves in those 
States which shall be in rebellion on the first of January next, 
may not be " used as the means" " to attain the end" (granting that 
it may ilierehy be attained) of ending this war of rebellion, and thus 
of saving our Constitution, our government, our Union, and of 
still preserving for ourselves and for coming generations, here and 
elsewhere, the only real Temple of civil and religious liberty in 
which men can worship on earth? You speak of " lawfulness" in 
this connection rather in a moral than in any other sense ; the right 
and power in a legal and constitutional sense, to issue this proclama- 
tion has already been demonstrated. 

In a document intended, " after study and reflection," " to aid 
the citizens of this republic to form a right conclusion" on matters 
of surpassing magnitude and solemnity — ■ matters imperilling their 
very liberties, as you state — a religious, scrupulous regard to truth 
in every material respect, was of course, to be expected ; and de- 
parture from truth may consist as well in omission and suppression 
as in direct assertion. I have already mentioned that you have 
wholly omitted, in the statement of the proclamation, the compen- 
satory part, and that you omit to bring forward, except merely in- 
cideutally, another most material part of it, namely, its conditional, 
alternative character. 



17 

Whether your statement as to the " social condition of nine 
millions of men," has reference to both white and black, or to the 
white only, it is difficult to determine from the context ; if it has 
reference to the white, you commit a very serious error ; for the 
whole white population of the rebel States, (to which alone the 
proclamation and your argument relate,) according to the last 
census, (I860,) does not exceed four and one half millions. 

In quoting the opinion of the lamented Judge Woodbury, you 
omit to state that it was a dissenting opinion, concurred in by 
no other Judge, founded essentially, if not solely, on the fact 
assumed by him, that at the time in question in that case, " a state 
of war " did not exist in Rhode Island, where the matter arose. In 
so grave a paper prepared, as you assert, so deliberately, put forth 
under an imperative and resistless impulse of patriotic apprehen- 
sion that the liberties of the country were in imminent peril, (not 
from the rebellion but frorn the acts of the President, designed to 
crush the rebellion,) in such a paper, I say, it would seem that we 
ought not to be terrified by "portentous clouds," "gigantic sha- 
dows," the phrase "usurpation of power," often repeated, the " loss 
of his head by Charles I.," " seven hundred years of struggles against 
arbitrary power," and many other similar appeals, hy modes of ex- 
pression^ to anything but that calm, reason, which enables us to " form 
right conclusions in dark and dangerous times." Much less in such a 
grave document from such a source, should important stress be laid 
on the expression, of aii unnamed and irresponsible editor of a news- 
paper, " that nobody pretends that this act is constitutional, and 
nobody cares whether it is or not." That this editor was at least a 
very inferior constitutional lawyer, is very clear, and that this text 
from his paper should have furnished a peg on which to hang an 
alarming commentary on the " lawlessness" of the times, is at least 
extraordinary, and that lawlessness, too, not the lawlessness of rebels 
nor of rehel sympathizers. 

You ask, in view of the President's proclamation : " Who can 
imagine what is to come out of this great and desperate struggle ? 
The military power of eleven of these States being destroyed, what 
then? What is to be their condition? What is to be our con- 
dition?" 

Your questions admit of a ready answer. The United States of 
America are to come out of the struggle, a great, a united, a power- 



18 

ful, a free people, purified bj the fires of adversity, and taught by 
their tremendous calamities the lessons of moderation and humility. 
The people of the rebel States^ who choose to remain in them, are to 
come out of the struggle as citizens of States forming a part, as 
heretofore, of the United States, and with them, and as parts of them, 
the}'' are in future to enjoy the blessings of a well-regulated liberty, 
they having in the mean time been taught a lesson of infinitely 
greater severity than that by which their brethren of the loyal 
States have been instructed. Whatever they have necessarily and 
legitimately lost in material things, by reason of the war they have 
waged, is, of course, lost to them forever ; if their slave property is 
thus lost, it is lost, and that is all that can be said as to that. Then 
"their condition" and " our condition" is to be in substance just 
what it was before the rebellion, and what it would have continued 
to be but for the rebellion, with this only difference, that they and 
we will have learned the priceless value of the Union, and for 
generations to come treason and rebellion will not raise their horrid 
heads. 

Perhaps you may call this the dream of an enthusiast. Rely on 
it, I speak only the words of " truth and soberness;" and if you 
are spared for a brief period, you will be rejoiced, I trust, to wit- 
ness their full realization. Rejoiced, I say, because from your pam- 
phlet, you would have your countrymen infer, and I am bound to 
presume, that nothing but your intense love of your and their 
country and your agitating apprehensions that the " principles of 
liberty" are grievously to suffer, (not from the rebellion, but from the 
acts of the President,) has induced you to address them. 

You say the " cry of disloyalty" has been raised against any 
one who should question these executive acts. I know not whether 
that epithet has been applied to you ; if it has been, I am bound to 
believe that the imputation was without cause, and that you are a 
faithful, loyal citizen of the Republic. But the greatest and the 
best are liable to err, and I may be permitted to say, that, however 
honestly and sincerely you entertain the sentiments you express, 
you have selected an inopportune moment for their expression ; 
and that at this particular period of our country's history, your 
" studies and reflections," your time and your efforts, would, to 
say the least, have been more benignly and gracefully employed in 
presenting to your countrymen a lifelike picture of the real charac- 



19 

ter of this rebellion, and in impressing on them with stirring and 
glowing eloquence the momentous duty it devolved on thern. 
You could, with perfect verity, have told them, that this war, 
inaugurated by the rebel States, was wholly and absolutely without 
cause : in proof of that assertion, you could have stated three facts, 
so undeniable that the hardiest rebel, not bereft of reason, would 
not dispute them. 

i^i>5i.— That on the 1st day of November, 1860, no people on 
the globe were in the more perfect enjoyment of civil and religious 
liberty, of social, personal, and domestic security ; of more entire 
protection in the possession and use of all their property, of every 
kind ; and of more material prosperity, than the people of the 
eleven rebel States. 

Second. — That for all these blessings, as great as were ever vouch- 
safed by God to man, those people were indebted entirely to that 
Constitution and that Union which their rebellion was undertaken 
to destroy. 

77?,M-d— That from the day of the organization of the Govern- 
ment under that Constitution, in the year 1789, down to the day 
when this rebellion began its infamous and unhallowed woi-k, 
there never had been, on the part of that Government, a single act 
of hostility, nor even of unkindness, toward these States or their 
people. 

You should then have pointed out to your "countrymen," in 
language more persuasive and emphatic than I can use, their solemn 
and imperative duty as patriots, as Christians, and as men, in this 
hour of their country's suffering and peril ; and you should have 
told them that if these times are, as you say, "dark and danger- 
ous," this darkness and this danger have been caused by the 
wicked acts of these rebellious men. In such an address to your 
countrymen, your dedication would have been not merely " To all 
persons who have sworn to support the Constitution of the United 
States, and to all citizens who value the principles of civil liberty 
which that Constitution embodies, and for the preservation of 
which it is our only security," but also, "to all persons who abhor 



20 

treason and rebellion against that Constitution, and to all who prize 
the inestimable blessings of our hallowed Union, and to all who 
hold dear the farewell words of the Father of his country." 

I had intended, in this letter, to comment on that part of your 
pamphlet which relates to the President's proclamation of the 24th 
of September, 1862, but this paper is already sufficiently extended. 
It would, I think, be easy to show that the dreadful dangers you 
apprehend are, in truth, to use your own terms, "portentous clouds" 
and "gigantic shadows" of your own creation. At any rate you 
may rest assured, if you and I and all others of our fellow-citizens, 
outside of the rebel States, shall make honest, earnest, determined 
efforts for the putting an effective end to this rebellion, (and that 
such will be the case I, loving my country and knowing the un- 
speakable value of the stake, have no right nor reason to doubt,) 
those efforts will be crowned with speedy and triumphant success, 
peace and harmony will be restored to the republic, the " prin- 
ciples of civil liberty" will not have suffered, and the bugbears of 
"usurpation," "arbitrary power," and other similar chimeras, 
which excited imaginations and gloomy tempers have evoked, will 
disappear forever. 

Had you been an unknown and obscure citizen, any notice of 
your pamphlet would have been supererogatory ; but because of 
the influencQ calculated to be exerted by anything coming from the 
pen of one who had but recently been the incumbent of the highest 
office in the gift of the Grovernment, and who is now in the exalted 
walks of social and professional life, I have deemed it my duty to 
present these views of your argument, and thus "possibly to aid 
my countrymen" in "forming right conclusions" as to its merits 
and the merits of the subject of which it treats. 

1 hear that others have published answers to your paper. Not 
having seen any of them, I know not but that I may have merely 
repeated their views ; if so, no harm is done ; if I have presented 
any that are new, " possibly" some good may result. 

New- York, Nov. 28tb, 1862. 

Charles P. Kirkland. 










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